TT-Line Company Pty Ltd v Burrows
[2024] TASSC 46
•23 August 2024
[2024] TASSC 46
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | TT-Line Company Pty Ltd v Burrows [2024] TASSC 46 |
| PARTIES: | TT-LINE COMPANY PTY LTD |
| v | |
| BURROWS, Rae | |
| FILE NO: | 818/2023 |
| DELIVERED ON: | 23 August 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 12 August 2024 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Animals – Various statutory provisions – Other matters – Regulation requiring horses transported across Bass Strait to be individually stalled – 28 horses double stalled – Penalty.
Aust Dig Animals [68]
Legislation:
Animal Welfare (Land Transport of Livestock) Regulations 2013 (Tas), reg 34(6)
Cases cited:
TT-Line Company Pty Ltd v Burrows [2023] TASFC 4
Wood v Major (1992) 3 Tas R 249
REPRESENTATION:
Counsel:
Applicant: D Neal SC, K Grinberg Respondent: M Wilson SC
Solicitors:
Applicant: HFW Australia Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 46 |
| Number of paragraphs: | 30 |
Serial No 46/2024 File No 818/2023
TT-LINE COMPANY PTY LTD v RAE BURROWS
| REASONS FOR JUDGMENT | BLOW CJ 23 August 2024 |
1 On the night of 28 January 2018 the applicant in these proceedings, TT-Line Company Pty Ltd, transported 30 horses across Bass Strait from Devonport to Melbourne in the hold of its vessel Spirit of Tasmania I. The horses were in two livestock transport vehicles. Twelve of them were in a vehicle driven by a Mr Martin, loaded two per stall. They arrived in Victoria intact. The other 18 horses were in a trailer driven by a Mr Williams. Sixteen of them were loaded two per stall. The other two horses were loaded one per stall. That vehicle was a converted refrigeration trailer. After it arrived in Victoria, Mr Williams found that the 16 horses that had been loaded two per stall were all dead. They died during the voyage as a result of the ventilation of the converted refrigeration trailer being inadequate.
2 Regulation 34(6) of the Animal Welfare (Land Transport of Livestock) Regulations 2013
provided as follows:
"(6) A person transporting a horse across Bass Strait must ensure –
(a) … (b) in any other case, that the horse is individually stalled."
3 The applicant contravened that regulation on the voyage in question by transporting 28 horses that were not individually stalled. However there is now no suggestion that the fact that they were not individually stalled caused or contributed to the deaths of any of them.
4 As a result of the deaths of the 18 horses, the applicant company was charged and later convicted by a magistrate of the offence of using a method of management that was reasonably likely to result in unreasonable and unjustifiable pain and suffering to animals, contrary s 7 of the Animal Welfare Act 1993, and of 28 offences of transporting a horse across Bass Strait and failing to ensure that the horse was individually stalled, contrary to reg 34(6) above.
5 The sequence of events, from the time the charge was found proven, has been as follows:
• On 27 October 2022 the magistrate, Ms L Topfer, found all 29 charges proven. •
On 17 November 2022 the applicant filed a notice to review in relation to the charge under the Animal Welfare Act. The findings of guilt in relation to reg 34(6) were not challenged.
• On 21 December 2022 the learned magistrate received submissions in relation to sentencing. •
On 14 March 2023 her Honour convicted the applicant on all 29 charges and, as an in globo penalty, imposed a fine of $75,000.
•
On 3 April 2023 the applicant filed another notice to review in relation to the convictions and the fine.
•
On 17 April 2023 the Full Court heard the motion to review in respect of the conviction under the Animal Welfare Act. A single judge had referred the relevant notice to review to the Full Court for determination. The Full Court declined to deal with the motion to review in relation to the convictions and fine.
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• On 3 July 2023 the Full Court allowed the motion relating to the charge under the Animal Welfare Act, set aside the finding of guilt in relation to that charge, and remitted the matter for re-hearing by a different magistrate: TT-Line Company Pty Ltd v Burrows [2023] TASFC 4. Each of the judges accepted that the evidence did not establish any causal link between the double stalling and the deaths of the 18 horses: Estcourt J at [50], Martin AJ at [118], Porter AJ at [287]. • Subsequently the Director of Public Prosecutions decided not to proceed in relation to the charge under the Animal Welfare Act and it was dismissed. • The hearing of the motion to review relating to the convictions and the fines proceeded before me on 12 August 2024. 6 Since the most serious charge has been dismissed, the fine of $75,000 in relation to the 29 charges obviously cannot stand. My task is, in substance, to re-sentence the applicant on the 28 charges of contravening reg 34(6). The applicant contends that, in the circumstances as they are now understood, the 28 convictions should be set aside. Uncontroversially it also contends that the fine of $75,000 must be set aside.
7 The sentencing options that I need to consider are as follows:
• Convictions and a fine or fines. • A fine or fines without convictions. • Recording convictions without a fine or fines. •
With or without recording convictions, adjourning the proceedings for a period not exceeding 60 months with the applicant giving an undertaking with appropriate conditions attached, pursuant to s 7(f) of the Sentencing Act 1997.
• Dismissing the charges without recording any convictions.
The breaches of the regulation
8 In the court below, a veterinary officer from Biosecurity Tasmania, Dr Grull, explained that the purpose of the regulation requiring single stalling was to prevent horses from biting, kicking or fighting with one another. There is no suggestion that the requirement for single stalling had anything to do with ventilation requirements. The man who modified the trailer in which the horses later died, Mr Couper, gave some evidence as to advantages of double stalling. He explained that horses who liked each other could travel together. He also explained that if a horse fell, it would have a better chance of regaining its footing if it was double stalled rather than in a single stall. However reg 34(6) required single stalling, and it was the duty of the applicant company to ensure that it complied with that regulation.
9 Prior to the voyage in question, the applicant company had not implemented any arrangements to check horse transport vehicles to ensure that horses were individually stalled. A system of visual inspections would have been very simple to arrange, but that was not done. The management of the applicant company relied on drivers to make appropriate arrangements for the transport of horses and other animals. At the time of the relevant voyage it required all drivers transporting horses in trailers or trucks to complete a declaration and to submit it by email or fax 48 hours prior to departure. The standard form of declaration read as follows:
"I hereby declare that I am aware of and understand the animal welfare provisions contained in the Marine Orders Part 43 and the TT-Line Company Pty Ltd Carriage
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of Livestock Policy and after due enquiry believe that the animals to be shipped have
been selected and transported according to these requirements."
10 Marine Orders are pieces of delegated legislation made pursuant to the Navigation Act 1912 (Cth). Marine Orders Part 43 Issue 6 was tendered as an exhibit during the hearing before the learned magistrate. It is 69 pages long. It relates to the handling of livestock. It contains the following provision:
"26 Horses – arrangements for carriage Each horse carried must be in a separate stall except that, if accepted by an approved veterinary officer prior to loading, horses may be carried in pens."
11 Despite every driver of a horse trailer or horse truck signing a declaration confirming awareness of the provisions contained in Marine Orders Part 43, drivers routinely loaded double stalled horses onto the company's vessels and the company routinely transported double stalled horses across Bass Strait.
12 A full page of requirements relating to the transportation of horses was included on the second page of each declaration document. The sixth line of fine print on that page read as follows:
"(6) Loading densities and penning arrangements shall be at the sole discretion of
the driver."
That would appear to be inconsistent with the requirements of reg 34(6) and the single stalling provision in the Marine Orders.
13 Regulation 34(6) creates an offence of strict liability. There was no intention on the part of the applicant company to breach the regulation. There is no suggestion that the breach of the regulation caused any harm. Double stalled horses had routinely travelled on the company's vessels on many previous voyages, even in the trailer in which the 18 horses died on the night in question, without coming to any harm.
The circumstances of the applicant company
14 The applicant company is owned by the State of Tasmania. At the relevant time its principal shareholders were the Tasmanian Treasurer and the Minister for Infrastructure and Transport. The TT- Line has been operating since 1985. The company has no prior convictions. The company operates a government business enterprise, providing ferry services between Devonport and Victoria. Its ships are the principal means of surface transport between the two States.
15 The company transported over 7,200 horses in the eight years from 2010 to 2018.
16 Counsel for the company provided the learned magistrate with four letters from people involved in horse transportation who spoke very highly of the company. Those letters were summarised in written submissions to the learned magistrate as follows:
"a
Elesha Spillane, the Managing Director of Tasmanian Horse Transport, outlines the high standard of service and care provided by TT-Line and its staff 'for decades'. Tasmanian Horse Transport take on average 6 trips per week across the Bass Strait with TT-Line and describe that TT-Line prioritises the needs of the animals in the transport. Ms Spillane gives two examples of times when TT- Line have acted to secure the safety and comfort of the horses as best as possible when a journey had to be delayed, and when a fire occurred on the vehicle deck. Ms Spilllane also refers to the financial support provided by TT- Line which facilitates junior competitors to compete in national competitions.
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b Marni Davis, Director of S & M Horse Transport, outlines that her company has used TT-Line to transport horses fortnightly over the last fourteen years and states that they have always received a high degree of service and are treated in a way that is understanding of the needs of transporting horses. Ms Davis also refers to the community support provided by TT-Line. c Colin Howlett, Chair of the Tasmanian Transport Council (an organisation representing most transport operator organisations in Tasmania, including the Tasmanian Livestock Carrier's [sic] Association and the Tasmanian Road Transport Association) has expressed support for TT-Line and refers to members who have previously transported sheep on TT-Line and have always experienced TT-Line staff to be obliging and helpful. d Chris and Kerry Mahoney, owners of A1 Horse Transport, have been transporting horses with TT-Line for over 30 years. They transport approximately 1500 horses per year. They have never had an incident during this time and stated that if they have held concerns or questions they have approached TT-Line staff who have always been helpful and accommodating."
17 Counsel for the company also provided the learned magistrate with details of contributions made by the company to community organisations and public events. Counsel's written submissions included the following:
"More generally, TT-Line has demonstrated a long standing and genuine commitment to working for the benefit of Tasmania and providing access and opportunity for the Tasmanian people. In the past five years, TT-Line has provided more than $1.3m to support charities and community organisations by providing cash and in kind support (such as supported travel and gift vouchers for fundraising). Of this amount, $1.2m was dedicated, over the period, to supporting Tasmanian based charities and events held in Tasmania. As part of this, Spirit of Tasmania has supported organisations including Cancer Council Tasmania, Tour de Cure, Carries Beanies 4 Brain Cancer, CareFlight, RUOK? Day and Pancare (a charity related to upper gastrointestinal cancers) to hold activities in Tasmania.
In keeping with this, TT-Line was a sponsor the Barnbougle Polo Event including providing transportation services free of charge.
TT-Line also invests in partnerships with the North Melbourne Kangaroos and the Tasmania JackJumpers. Both of these partnerships have strong community benefits and create long term development opportunities for young Tasmanians and more broadly for the Tasmanian economy.
Additionally, TT-Line is a long-time supporter of the Tasmanian Young Achiever Awards and supports the development of young talent in the retail and hospitality industry through partnerships with the TasTafe Drysdale Campus."
18 Companies about the same size as the applicant company commonly support charities and community events. They do so in order to generate good publicity, which of course is good for business. It is clear that the applicant company has been making substantial contributions to the community for years, and that that is a relevant factor for sentencing purposes, but I do not regard it as a powerful factor.
19 The applicant company cooperated with the authorities in relation to the investigation into the deaths of the horses. It introduced a system of visually checking on the individual stalling of horses in 2019, and has continued the practice of visual checking. It suffered substantial adverse publicity as a result of the deaths of the horses and the subsequent court proceedings. It seems very likely that many members of the public now do not realise that the deaths of the 18 horses are no longer attributed to any negligence on the part of the company.
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20 In May 2021 the company offered to plead guilty to two charges under reg 34(6). It proposed that there be two "rolled up" charges, one relating to each of the two trucks that travelled on the night in question. That offer was not accepted. The company did not plead guilty but it did not defend the 28 charges under reg 34(6). It appears that it maintained its pleas of not guilty to those charges in the hope that, if it were convicted of the charge under the Animal Welfare Act, the learned magistrate would be persuaded that the charges of failing to ensure individual stalling were subsumed, and would dismiss those charges in accordance with Wood v Major (1992) 3 Tas R 249.
21 I understand that the prosecutors decided to proceed with 28 charges under reg 34(6), rather than one or two rolled up charges, in order to avoid any possible arguments as to duplicity.
22 If it had been realised that the charge under the Animal Welfare Act would not succeed, it would have been reasonable for the complainant to have agreed to the proposal for pleas of guilty to two rolled up charges. The applicant company is not entitled to a sentencing discount because of a plea of guilty, but, in the circumstances, the making of the offer of May 2021 is a significant mitigating factor.
Resentencing
23 It appears that the applicant company's primary objective in pursuing this motion is to emerge from the proceedings without convictions. Its concern is for its reputation.
24 Prior to an amendment to the Sentencing Act in 2017, Tasmanian Courts could not impose fines without recording convictions. They are now able to do so. The discretion to record or not record a conviction is governed by s 9 of the Sentencing Act, which reads as follows:
"9 Conviction or non-conviction
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
(a) the nature and circumstances of the offence; and
(b) the offender's antecedents and character; and
(c) the impact that a conviction would have on the offender's economic or
social wellbeing or employment prospects."
25 The amendment in 2017 was made after the publication by the Sentencing Advisory Council of a report entitled Non-Conviction Sentences in August 2014. The focus of that report was on the consequences of convictions for individuals rather than companies. The consequences of convictions for individuals can relate to the holding of office, the obtaining of licences, restrictions on employment and restrictions on international travel. However a conviction imposed on a corporation can potentially have an impact on its "economic or social wellbeing", and any such impact must be considered pursuant to s 9(c).
26 Convictions on the reg 34(6) charges could potentially result in the company being required to pay higher insurance premiums. Such convictions could possibly have an impact on the company's reputation. It is conceivable that convictions could, to some extent, cause it to lose business. However the letters provided to the learned magistrate strongly suggest that it is unlikely to lose any significant amount of business from customers who routinely send horses across Bass Strait. It is also significant that the company has little in the way of competition. There is no comparable ferry service across Bass Strait. Its main competitors appear to be the airlines.
27 Regulation 34(6) had been in force for over four years before the voyage in question. During that time the applicant company had taken no significant steps to ensure the individual stalling of
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horses. It is true that the company routinely obtained declarations from drivers in the terms set out above, but it is clear double stalling routinely occurred despite that requirement. Against that background, I consider that the company's non-compliance with reg 34(6) on the night in question was so serious that this case should not be disposed of without the imposition of convictions.
28 However I think it can fairly be said that the imposition of 28 convictions might be likely to create inappropriate impressions as to the extent of the company's disregard for the law. I think it significant that the company offered to plead guilty to two rolled up charges in May 2021, a little over three years ago.
29 Having regard to all the relevant circumstances, I think the most appropriate outcome is for the company to suffer two convictions – one for each vehicle – and a fine of $4,000.
30 For these reasons, the motion to review is allowed, the convictions other than those on counts 2 and 18 on complaint 90840/19 are set aside, the fine of $75,000 is set aside, and in relation to counts 3-17 inclusive and 19-29 inclusive on the said complaint, the applicant is ordered to pay a fine of $4,000 within 28 days.
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